Buford v. Wainwright, 62653
| Citation | 428 So.2d 1389 |
| Decision Date | 17 March 1983 |
| Docket Number | No. 62653,62653 |
| Parties | Robert Lewis BUFORD, Petitioner, v. Louie L. WAINWRIGHT, Respondent. |
| Court | United States State Supreme Court of Florida |
David Rubman, Lake Alfred, and David E. Weisberg of Fried, Frank, Harris, Shriver & Jacobson, New York City, for petitioner.
Jim Smith, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for respondent.
We have for consideration a petition for writ of habeas corpus by Robert Lewis Buford whose conviction and sentence of death were affirmed by this Court in Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). We have jurisdiction. Art. V, § 3(b)(9), Fla. Const.
Petitioner contends his appellate counsel failed to pursue the substantively viable legal issue of the trial court's improper instruction to the jury on "associates." Petitioner further contends that the failure to present such issue to this Court on direct appeal of his death sentence resulted in his being denied reasonably effective assistance of counsel. U.S. Const. amend. VI.
We will address petitioner's claim by applying the standards adopted by this Court in Knight v. State, 394 So.2d 997 (Fla.1981), to determine whether counsel for the petitioner provided reasonably effective assistance in the initial appeal.
However, before reaching the merits of this petition we must determine whether trial counsel initially preserved the disputed issue for appeal by objecting to the court's alleged improper instruction on principals and accessories. Fla.R.Crim.P. 3.390(d).
Rule 3.390(d) reads:
No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.
In a bench conference prior to the court's charge to the jury, petitioner's trial counsel specifically requested that the instruction which the trial court intended to give include "requirements that the State show that as a principal that Mr. Buford have the conscious intent that the crime [murder] be committed and that he say a word or do an act toward the commission or toward the incitement ... [of the crime]." The trial court denied the requested modification and advised counsel, "Okay, your objection can be noted." In response to counsel's question, "And overruled?" the court replied, "And overruled."
We find that the trial court's alleged erroneous instruction to the jury on principals and accessories was properly preserved for appeal. We now proceed to the merits of this petition.
Petitioner contends that appellate counsel effected an injustice upon petitioner when counsel failed to raise the alleged erroneous jury instruction on his initial appeal to this Court, thus violating the principles enunciated in Knight v. State, 394 So.2d 997 (Fla.1981).
Because we find that appellate counsel provided reasonably effective assistance of counsel in the original appeal, petitioner is not entitled to a belated appeal and therefore the petition must be denied.
In charging the jury, the trial court included the following instruction on principals and associates:
When two or more persons combine together to commit an unlawful act, each is criminally responsible for the acts of his associates committed in furtherance or prosecution of the common design. If two or more persons combine to do an unlawful act, and in the prosecution of the common object an unlawful homicide results, all are alike criminally responsible for the probable consequences that may arise from the perpetration of the unlawful act they set out to accomplish. The immediate injury from which death ensues is considered as proceeding from all who are present aiding and abetting the injury done, and the actual perpetrator is considered as the agent of his associates. His act is theirs as well as his own and all are equally guilty.
Petitioner testified at trial. His testimony necessitated the contested charge being given because petitioner claimed that a person named "Fat Boy" had participated in the prior sexual battery and that he, and not petitioner, had actually killed the victim. This testimony, if believed by the jury would have been consistent with a felony-murder theory of the case. Contrary to petitioner's assertions, based on evidence presented, the jury could have...
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